The Supreme Court granted cert. on Tuesday in Friedrichs v. California Teachers Association, a case about the constitutionality of union “fair share fees” in the public sector. Friedrichs will be one of next Term’s blockbusters – we can expect a decision in the last part of the Term, when the Court hands down its most closely watched cases. Here’s what’s at stake:

What the case is about

Like many states, California permits its teachers who vote for union representation to bargain collectively over many of their working conditions. (Conversely, California teachers’ unions are not permitted to bargain over some key work rules, such as teacher tenure, which is set by statute.) An elected union must fairly represent every employee in its bargaining unit, and in exchange, the union and the state may agree to require each represented worker to pay his or her share of the union’s representation costs. This is a common way for states to structure their labor relations, and it was approved by the Supreme Court in a 1977 case called Abood v. Detroit Board of Education. On the other hand, Abood also held that unions cannot require workers to pay for their other activities, such as organizing other workplaces, and political advocacy.

The Friedrichs plaintiffs are asking the Court to overrule Abood and hold that public sector workers have a First Amendment right not to pay for union representation at all. (I described the case for ACSBlog in more detail here.) If the plaintiffs win, it would not mean that unions could stop representing non-paying workers; instead, it would mean that unions would have to represent them for free. One danger, then, is that so many workers might decide to free ride that their unions will collapse. That would harm workers, for whom unions help provide a route to the middle class, and also state employers who rely on collective bargaining as an effective method of workforce management.

Why now?

Twice in the last three years, in Knox v. SEIU Local 1000 and Harris v. Quinn, Justice Alito has authored majority opinions calling Abood into doubt. In response, groups opposed to public sector unions filed cases around the country arguing that Knox and Harris should be extended. Friedrichs was one of these cases; the plaintiffs are represented by the Center for Individual Rights and Michael Carvin, who also argued King v. Burwell and NFIB v. Sebelius. Their litigation strategy was to get to the Supreme Court as quickly as possible, and they accomplished it by admitting that their claims were foreclosed below and pressing for quick adverse decisions. But the lack of discovery in the district court will make for a thin record in front of the Supreme Court, which might have ultimately benefitted from evidence on topics like whether it is difficult to opt out of the non-mandatory portion of union fees, or the role of agency fees in promoting stable labor relations.

Friedrichs and the 2016 election

If the Friedrichs plaintiffs win, then dues paid by public sector workers who have voluntarily become full union members will be needed to fund the representation of free riders. Assuming unions do not raise dues, which might prompt more defections, they will then have to curtail their other activities, including new organizing and, crucially for the upcoming election, get-out-the-vote efforts. (Remember, represented workers already have a First Amendment right not to fund these activities—that is the balance Abood struck—so the money that would be diverted to free-rider representation is coming from workers who had already made a choice to participate.) In short: Citizens United freed unions to use general treasury funds for voter outreach and issue advocacy, so it is now in the right’s interests to divert union money to the representation of non-member workers. A win for the plaintiffs in Friedrichs will do that.

Justice Kennedy is almost certainly not the swing vote

During the Harris v. Quinn argument, Justice Kennedy was distinctly skeptical of Abood’s continuing validity. He seemed to view collective bargaining as substantially identical to lobbying (which is the Friedrichs petitioners’ position), at one point asking “whether or not a union can take money from an employee who objects to the union’s position on fundamental political grounds.” This leaves Justice Scalia or the Chief Justice as the possible swing votes. Justice Scalia previously authored a concurring opinion explaining why it was constitutional for unions to charge fair share fees, and he expressed concern during the Harris argument about the consequences of expanding the First Amendment rights of public sector workers. On the other hand, he characterized Abood’s rule as “undeniably unusual” in a 2007 case, so his vote for the respondents is far from a sure thing. For his part, Justice Roberts has written relatively little on the topic of union fees, and his questions during the Harris argument did not reveal much about his thinking.

Public sector workers comprise a majority of union members in the United States; they are more than five times more likely to belong to a union than their private sector counterparts. Indeed, most states allow at least some of their public sector workers to unionize, though there is tremendous variation in how states structure their public sector labor relations. A win for the Friedrichs plaintiffs will mean states can no longer decide to promote stable labor relations by ensuring that unions have the resources they need to represent the workers who elected them, and it will also reduce the labor movement’s ability to be a voice for workers.